Craig P. Shibley v. Department of State Police Crime Laboratory (SPR 20210063)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 26, 2021 SPR21/0063 Darina Griffin, Esq. Massachusetts Department of State Police Crime Laboratory 124 Acton Street Maynard, MA 01754 Dear Attorney Griffin: I have received the petition of Craig Shibley appealing the response of the Department of State Police Crime Lab (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 28, 2020, Mr. Shibley requested “. . . any records related to the Department’s ACISS case file 2013-0329, also identified as 13-0329, specific any DNA, firearms, or latent fingerprint tests from 2013 - 2020: • Total number of forensic tests conducted in this eight (8) year period; • Evidence Submission Forms [ESF]; • Chain of Custody Reports [if not included on ESFs] to include internal chain of custody; • Authorization Forms to Consume Evidence [if applicable]; • Requesting Detective’s name [if not included on the aforementioned documents]; • If outsourced, the name of the third party to conduct any of the above tests, to include the lab’s address and scope of work[.]” The Department sought clarification on January 5, 2021. Subsequently, the Department provided a response on January 11, 2021. Unsatisfied with the Department’s response, Mr. Shibley petitioned this office and this appeal, SPR21/0063, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Darina Griffin, Esq. SPR21/0063 Page 2 January 26, 2021 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The Department’s January 11th response In its January 11, 2021 response, the Department states that the request relates to an unsolved homicide case that “. . . is being investigated by the Worcester County District Attorney’s Office. Pursuant to G.L. c. 38 §4, the respective district attorney shall control the investigation of the death and shall coordinate the investigation within the jurisdiction of where the death occurred. Particularly, where you are seeking records related to submitted evidence in an unsolved homicide, the Department refers you to the Worcester County District Attorney’s Office, which is the investigating agency for that case.” The Department notes that where Mr. Shibley has previously made requests regarding this case to the Worcester County District Attorney’s Office, he should direct this inquiry to that office. It is my understanding that the subject matter of this request and the issues raised in Mr. Shibley’s appeal are similar to those addressed in SPR19/2115 Determinations of the Supervisor of Records (October 29, 2019; December 4, 2019; January 21, 2020) and other related appeals. Please note that on February 5, 2020, I referred this matter to the Office of the Attorney General (AGO) for enforcement. In light of this referral sent to the AGO, I decline to provide a determination as to the public status of the requested records at this time pending a resolution to the AGO’s review. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Shibley is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Craig Shibley